EDITORIAL: While the trichotomy of power envisaged by the Constitution has been badly bruised during the recent months with the Executive and Parliament defying the authority of the third pillar of the State, the judiciary, even hurling insults at members of higher judiciary, a new law may help strike up at least a working relationship between them.

On Monday, a three-member bench of the Supreme Court headed by the Chief Justice of Pakistan (CJP) Umar Ata Bandial was hearing a petition filed by the Election Commission of Pakistan (ECP) against its ruling that the Punjab assembly election be held on May 14, when the Attorney General informed the court that a fresh legislation, “The Supreme Court (Review of Judgements and Order) Act, 2023”, duly signed by President Arif Alvi, had come into force.

He claimed that it expanded the jurisdiction of the court by replacing the review rule — under which the same bench reconsiders its earlier decision — with the right to appeal in accord with Article 184 (3) of the Constitution.

Under the said clause every case is to be heard by judges nominated by the CJP, who can refer any case to a larger bench; and if the judges are equally divided in opinion, to another judge or a larger bench. This also means the CJP has to form another bench to hear the present case afresh.

Although the newly minted law is in sync with what the Bar had sought for long, the timing suggests it is yet another way of delaying the overdue elections to the Punjab and Khyber Pakhtunkhwa assemblies.

Justice Munib Akhtar said it all as he quipped “I see Mr Swati (the ECP’s lawyer) has a smile on his face.” An immediate result is that the hearing of the ECP’s review petition has been adjourned to an unspecified date. Justice Bandial, however, has taken an optimistic view of the new law. “This is interesting,” he remarked, “let’s explore the silver lining, bring stability in the country, and adopt the right course of action, as the [political] temperature would not help the economy.”

He also concurred with the law in that the jurisdiction of Article 184 (3) requires some form of substantive review.

Nonetheless, since it comes in the wake of suo motu notice the CJP took of the ECP violating the constitutional provision that calls for elections to a dissolved provincial assembly “not later than 90 days” of the dissolution, the suspected objective behind it still looks unachievable.

The CJP reminded the Attorney General that the Supreme Court has to ensure the enforcement of fundament rights, a salient feature of the Constitution. In other words, the Executive or the ECP cannot indefinitely deprive the people of the right to elect their representatives to the assemblies.

Unfortunately, lack of unity among the judges has allowed the Executive backed by certain quarters to undermine the authority and prestige of the apex court.

Commenting on the formation of an inquiry commission formed by the government to investigate the ‘leaked’ audiotapes involving certain judges and/or their relatives, Justice Bandial recalled that for all previous judicial commissions, such as the Memogate, Abbottabad and Saleem Shehzad commissions, the then chief justices had nominated their members whereas in the instant matter the government had acted unilaterally, posing the question why break the norm? Why indeed? Sadly, the answer lies inside the institution itself.

The schism within has helped elected and unelected forces to blur the line the Constitution draws between the three State institutions.

A silver lining to defuse the stand-off between the two pillars of state under the constitution seems to have appeared when the attorney general informed the court that the government intends to harmonise some overlapping provisions of the Supreme Court (Practice and Procedure) 2023, whose implementation has been suspended by the Supreme Court for the time being and the subsequently promulgated Supreme Court (Review of Judgements and Orders) Act 2023. It is hoped that all stakeholders would ensure that the cleavage between courts and the executive/legislature would soon be bridged.

Copyright Business Recorder, 2023